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Oregon Natural Desert Association v. Brong

August 31, 2010

OREGON NATURAL DESERT ASSOCIATION; COMMITTEE FOR THE HIGH DESERT; WESTERN WATERSHEDS PROJECT, PLAINTIFFS-APPELLANTS, BUREAU OF LAND MANAGEMENT;
v.
ELAINE M. BRONG, STATE DIRECTOR, OREGON/WASHINGTON BLM; TOM DABBS, FIELD MANAGER, MALHEUR RESOURCE AREA, BLM; JERRY TAYLOR, FIELD MANAGER, JORDAN RESOURCE AREA, BLM, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Oregon, Anna J. Brown, District Judge, Presiding, D.C. No. CV-03-01017-JJ.

The opinion of the court was delivered by: Berzon, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted November 8, 2007 -- Portland, Oregon

Filed July 14, 2008; as amended August 31, 2010

Before: Raymond C. Fisher and Marsha S. Berzon, Circuit Judges, and Judith M. Barzilay, Judge.*fn1

The Bureau of Land Management (the "BLM" or the "Bureau") is charged with managing "the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people." 43 U.S.C. § 1702(c); see also id. § 1712(a), (c). That task, which the Supreme Court has characterized as "enormously complicated," Norton v. Southern Utah Wilderness Alliance ("SUWA"), 542 U.S. 55, 58 (2004), requires careful planning.

The issue in this case is whether the BLM complied with the requirements of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321 et seq., when it developed a land use plan covering a large portion of Oregon. The Oregon Natural Desert Association, Committee for the High Desert, and Western Watersheds Project (collectively "ONDA") contend that the BLM has not done so because it has failed (1) properly to analyze the effects of the plan on lands under its control possessing "wilderness characteristics"; and (2) properly to analyze management options for grazing and off-road vehicle use throughout the region covered by the plan. The district court granted summary judgment for the BLM. We reverse and remand to the district court for further proceedings.

I. Background

A. The Physical and Legal Landscape

1. Southeastern Oregon

The BLM-managed land at issue (which we will sometimes refer to as the "planning area") spreads over roughly four and a half million acres of rugged, remote land in southeastern Oregon's Malheur, Grant, and Harney Counties. These lands lie in the rain shadow of the Cascade and Coastal ranges, and so are sunny and semi-arid. The sagebrush plains that characterize the region are varied by high mountains, rising to over 8,000 feet, and by the valleys of the Malheur and Owyhee rivers.

A similar landscape (not at issue in this appeal) extends into Idaho to the west. We have described that region, in terms equally applicable to the Oregon lands, as "[s]tartling in its ecological diversity, from arid sagebrush desert to lush juniper woodlands," and as including "spectacular and wild canyonlands" along the Owyhee river. Idaho Watersheds Project v. Hahn, 307 F.3d 815, 821 (9th Cir. 2002).

It is not simply the landscape that marks the planning area. The area is also home to tens of thousands of people who live and work in this dry and demanding territory. European settlement of the region began as immigrants moved west over the Oregon Trail and intensified with the discovery of gold in the Owyhee Mountains in the 1860s, bringing miners and ranchers into the landscape. Today, about 30,000 people live in Malheur County, which makes up the bulk of the planning area. Although the service and outdoor recreation industries are growing significantly, farming and ranching still drive the economy. The old mines are largely tapped out and do not employ many people, and portions of the range were degraded in the early years of settlement. These days, Malheur County's economic indicators are significantly below statewide averages for Oregon, and a sizable portion of the population is below the poverty line.

Federally owned land makes up a large portion of the region, giving the BLM an important role. Its land use planning choices influence both the unique and irreplaceable natural resources of the planning area and the local economy, which is strongly tied to the outdoors. The choices available to the BLM are governed in large part by three statutes of central relevance to this appeal: the Federal Land Policy and Management Act, the Wilderness Act, and the National Environmental Policy Act. We discuss each statute in turn.

2. Federal Land Management

a. The Federal Land Policy and Management Act

The BLM's land management authority is defined by the Federal Land Policy and Management Act of 1976 (the "FLPMA"), 43 U.S.C. §§ 1701 et seq. Although the BLM existed before the passage of the FLPMA, see 43 U.S.C. § 1731(a), its role was extensively revised by that statute, which, among other changes, establishes systems for information gathering and land use planning.

The FLPMA directs that the Secretary of the Interior, who oversees the BLM, "shall, with public involvement..., develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands." Id. § 1712(a); see also SUWA, 542 U.S. at 58-60 (describing the land use planning process).*fn2 Among other requirements, these plans are to "use and observe the principles of multiple use and sustained yield";*fn3 "use a systematic interdisciplinary approach"; "give priority to the designation and protection of areas of critical environmental concern"; and "weigh long-term benefits to the public against short-term benefits." 43 U.S.C. § 1712(c). The BLM "shall manage the public lands" in accordance with these plans. Id. § 1732(a).

To ensure that the BLM has adequate information to perform this task, the FLPMA also directs that:

The Secretary shall prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values (including, but not limited to, outdoor recreation and scenic values), giving priority to areas of critical environmental concern. This inventory shall be kept current so as to reflect changes in conditions and to identify new and emerging resource and other values.

Id. § 1711(a). The BLM, in other words, is obligated to "ar-range for resource, environmental, social, economic and institutional data and information to be collected, or assembled if already available." 43 C.F.R. § 1610.4-3. The Bureau is, in particular, to collect "[n]ew information and inventory data [that] will emphasize significant issues and decisions with the greatest potential impact." Id. Land use plans are to "rely, to the extent it is available, on the inventory of the public lands, their resources, and other values." 43 U.S.C. § 1712(c)(4). An extensive public comment process also provides information for the formulation of BLM land use plans. See 43 C.F.R. § 1610.2 (discussing public participation).

The land use plans thus developed guide "[a]ll future resource management authorizations and actions... and subsequent more detailed or specific planning, shall conform to the approved plan[s]." Id. § 1610.5-3. After a land use plan is approved, "[a]ny person who participated in the planning process and has an interest which is or may be adversely affected by the approval or amendment of a resource management plan may protest such approval or amendment." Id. § 1610.5-2(a). Once the Director of the BLM has ruled on any protest, the decision is final and the plan may be adopted. Id. § 1610.5-2(a)(3), (b).

b. The Wilderness Act and the FLPMA

Among the resources to be managed on federal lands, lands with statutorily-defined wilderness characteristics are of particular importance. Congress identified the conservation of such lands as a national priority in the Wilderness Act of 1964 (the "Wilderness Act"), 16 U.S.C. §§ 1131 et seq. See also Wilderness Soc'y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1055-56 (9th Cir. 2003) (en banc) (describing the passage of the Wilderness Act). The FLPMA, which was enacted later, interacts with the Wilderness Act to provide the BLM with broad authority to manage areas with wilderness characteristics contained in the federally owned land parcels the Bureau oversees, including by recommending these areas for permanent congressional protection.

The Wilderness Act is intended to "assure that an increasing population, accompanied by expanding settlement and growing mechanization, does not occupy and modify all areas within the United States and its possessions, leaving no lands designated for preservation and protection in their natural condition." 16 U.S.C. § 1131(a). A "wilderness" is defined, "in contrast with those areas where man and his own works dominate the landscape," as:

an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean in this chapter an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and uncon-fined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.

Id. § 1131(c).

The Wilderness Act did not directly address the BLM's management of its lands. The FLPMA remedied this deficiency by providing specifically for a review of wilderness resources on BLM lands, see 43 U.S.C. § 1782, and by ensuring that lands with wilderness characteristics are regularly inventoried for use in land use planning.

First, the FLPMA provides in pertinent part that:

Within fifteen years after October 21, 1976, the Secretary shall review those roadless areas of five thousand acres or more and roadless islands of the public lands, identified during the inventory required by [43 U.S.C.] § 1711(a)... as having wilderness characteristics described in the Wilderness Act... and shall from time to time report to the President his recommendation as to the suitability or nonsuitability of each such area or island for preservation as wilderness...

Id. § 1782(a). Upon such a recommendation, the President is to advise Congress "of his recommendations with respect to designation as wilderness of each [agency-recommended] area," and Congress may then act to "designat[e] as wilderness" the lands it deems appropriate. Id. § 1782(b); see also SUWA, 542 U.S. at 58 (explaining that "Congress made the judgment that some lands should be set aside as wilderness..."); Smith v. U.S. Forest Serv., 33 F.3d 1072, 1073 (9th Cir. 1994) (stating that "[t]he areas ultimately granted wilderness status by Congress must, by law, remain protected and free from development."); 43 C.F.R. § 6302.11 (explaining that wilderness areas will generally only be "open to uses consistent with the preservation of their wilderness character and their future use and enjoyment as wilderness").*fn4 In the interim period between the BLM's review of lands "identified during the inventory... as having wilderness characteristics" and Congress's final preservation decision, the BLM must, with a few exceptions not relevant here, manage all the lands it has reviewed "so as not to impair the suitability of such areas for preservation as wilderness," whether or not it believes them to be suitable for such preservation. 43 U.S.C. § 1782(c). The recommended lands, managed under this "non-impairment" standard, are referred to as "wilderness study areas" ("WSAs"). See SUWA, 542 U.S. at 59.

Importantly, although 43 U.S.C. § 1782 provides a mechanism by which the BLM may submit lands to Congress for legislation preserving them, the BLM's authority to identify lands with "wilderness characteristics" is not limited to the § 1782 process. Rather, as § 1782 makes clear, it is the 43 U.S.C. § 1711(a) general resource inventory process, which catalogues "all public lands and their resource and other values," id., that is to identify lands "as having wilderness characteristics described in the Wilderness Act." Id. § 1782(a); see also Sierra Club v. Watt, 608 F. Supp. 305, 309-10 (C.D. Cal. 1985) (describing the "inventory preparation requirement of [§ 1711]" as the first step in the wilderness review and designation process of § 1782); Wilderness Soc'y, 119 I.B.L.A. 168, 170-72 (1991) (discussing the wilderness process as occurring under both §§ 1711 and 1782). In other words, wilderness characteristics are among the "resource and other values" of the public lands to be inventoried under § 1711.*fn5 The BLM's land use plans, which provide for the management of these resources and values, are, again, to "rely, to the extent it is available, on the inventory of the public lands, their resources, and other values." 43 U.S.C. § 1712(c)(4).

We discuss the significance of the FLPMA's recognition of wilderness characteristics as an "other value" to be inventoried under § 1711 and managed under § 1712 at length below.

c. The National Environmental Policy Act

"Approval of a resource management plan is considered a major Federal action significantly affecting the quality of the human environment." 43 C.F.R. § 1601.0-6. For that reason, the land use planning process implicates the third major statute we address today, NEPA, which requires the preparation of an environmental impact statement ("EIS") for such actions. See 42 U.S.C. § 4332(C).

In NEPA, Congress declared as a national policy "creat[-ing] and maintain[ing] conditions under which man and nature can exist in productive harmony." Id. § 4331(a). NEPA's purpose is realized not through substantive mandates but through the creation of a democratic decisionmaking structure that, although strictly procedural, is "almost certain to affect the agency's substantive decision[s]." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); see also Churchill County v. Norton, 276 F.3d 1060, 1072-73 (9th Cir. 2001) (describing NEPA's theory of democratic decisionmaking). By requiring the consideration of environmental factors in the course of agency decisionmaking on major federal actions, NEPA serves two purposes:

First, "it ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts." Second, it "guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision."

Dep't of Transp. v. Public Citizen, 541 U.S. 752, 768 (2004) (quoting Methow Valley, 490 U.S. at 349) (internal citations and alteration omitted). In other words, by requiring agencies to take a "hard look" at how the choices before them affect the environment, and then to place their data and conclusions before the public, see Or. Natural Res. Council Fund v. Goodman, 505 F.3d 884, 889 (9th Cir. 2007), NEPA relies upon democratic processes to ensure - as the first appellate court to construe the statute in detail put it - that "the most intelligent, optimally beneficial decision will ultimately be made." Calvert Cliffs' Coordinating Comm. v. U.S. Atomic Energy Comm'n, 449 F.2d 1109, 1114 (D.C. Cir. 1971). "NEPA's purpose is not to generate paperwork - even excellent paperwork - but to foster excellent action." 40 C.F.R. § 1500.1(c).

As "public scrutiny [is] essential to implementing NEPA," id. § 1500.1(b), "[a]n agency preparing a final [EIS] shall assess and consider comments both individually and collectively, and shall respond..., stating its response in the final statement." Id. § 1503.4(a). Responses may include "[d]evelop[ing] and evaluat[ing] alternatives not previously given serious consideration by the agency" and "[s]upplement[ing], improv[ing], or modify[ing] its analyses." Id. If an agency opts not to make changes, it must, at least, "[e]xplain why the comments do not warrant further agency response, citing the sources, authorities, or reasons which support the agency's position." Id. § 1503.4(a)(5).

Because NEPA " 'simply guarantees a particular procedure,' " rather than a substantive result, we have characterized the rights and obligations it creates as "fundamentally unlike" those of substantive land management statutes like the FLPMA. Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1070-71 (9th Cir. 2002) (quoting Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 737 (1998)); see also Methow Valley, 490 U.S. at 350-51 (discussing NEPA's procedural focus). Nonetheless, the statute remains "the broadest and perhaps most important" of the environmental statutes. Calvert Cliffs, 449 F.2d at 1111.

The EIS is NEPA's chief tool, designed as an "action-forcing device to [e]nsure that the policies and goals defined in the Act are infused into the ongoing programs and actions of the Federal Government." 40 C.F.R. § 1502.1. To fulfill its purpose, an EIS must "provide full and fair discussion of significant environmental impacts and shall inform decision-makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." Id.; see also 42 U.S.C. § 4332(C) (enumerating EIS requirements). To fulfill this mandate, agencies must "consider every significant aspect of the environmental impact of a proposed action" in an EIS, Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 781 (9th Cir. 2006) (quoting Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1153-54 (9th Cir. 2006)); see also 40 C.F.R. Pt. 1502 (discussing EIS requirements), including the direct, indirect, and cumulative impacts of the action. See 40 C.F.R. §§ 1508.7, 1508.8 (defining those terms).

As the EIS is intended to be used to guide decisionmaking, the alternatives analysis is naturally "the heart of the environmental impact statement." Id. § 1502.14. In that section, the agency must "[r]igorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated. Id. "The existence of a viable but unexamined alternative renders an environmental impact statement inadequate." Westlands Water Dist. v. U.S. Dep't of Interior, 376 F.3d 853, 868 (9th Cir. 2004) (quoting Morongo Band of Mission Indians v. Fed. Aviation Admin., 161 F.3d 569, 575 (9th Cir. 1998)).

B. The BLM's Plans for Southeastern Oregon

With this background in mind, we turn to the BLM's planning process for southeastern Oregon.

We begin with the BLM's initial wilderness review of the region, which it conducted pursuant to 43 U.S.C. § 1782's mandate to recommend WSAs to the President for permanent legislative preservation as wilderness. By November 1980, the BLM identified 32 WSAs in the planning area, covering slightly less than 1.3 million acres. A final EIS considering the BLM's recommendations was completed in 1989, and the BLM transmitted its recommendations to the President in October 1991. It advised permanent preservation for twenty-one of the WSAs. The report also identified about three thousand acres of land adjoining WSAs that could be acquired for preservation as wilderness. In 1992, the President submitted these recommendations, without change, to Congress, which has not yet acted upon them. The BLM has not since inventoried any lands in the planning area outside of the WSAs for wilderness characteristics.

In August 1995, the BLM, in accordance with its regulations, published a public notice that it would prepare a resource management plan for the region. See Intent to Prepare a Resource Management Plan for the Andrews, Malheur, and Jordan Resource Areas, Oregon, 60 Fed. Reg. 44,042 (Aug. 24, 1995); see also 43 C.F.R. § 1610.2(c) (providing for public notice when planning commences). The Southeastern Oregon Management Plan (the "Southeast Oregon Plan" or the "Plan") is intended to guide management of the area for the next twenty years. BUREAU OF LAND MGMT., U. S. DEP'T OF THE INTERIOR, PROPOSED SOUTHEASTERN OREGON RESOURCE MANAGEMENT PLAN AND FINAL ENVIRONMENTAL [IMPACT] STATEMENT ("FEIS") xii (2001). Some three years after initiating the planning process, the BLM announced that the draft Plan and an accompanying EIS were available for public comment.*fn6 See Notice of Availability of Draft Southeastern Oregon Resource Management Plan/Environmental Impact Statement, 63 Fed. Reg. 56,660 (Oct. 22, 1998). ONDA reviewed the draft EIS and Plan, and then raised some concerns in a comment letter to the BLM.*fn7

ONDA noted that it had been years since the BLM's last inventory of lands with wilderness characteristics and argued that the BLM should make certain its information was accurate before designing a management strategy for the region:

The time has come for the agency to conduct a reinventory of [roadless] lands [in southeastern Oregon]. Such an inventory... should exclude those areas already designated as WSAs and focus instead on other lands that were overlooked or deemed ineligible during the first inventory.

It is crucial that any wilderness re-inventory also assess newly acquired state and/or private inholdings. During BLM's original wilderness inventory, some potential WSAs were deemed ineligible due to management issues resulting from large private inholdings. In situations where these inholdings have since been acquired, BLM must reconsider the eligibility of those lands as WSAs. We are confident that the BLM may be able to identify additional lands that should be protected....*fn8

ONDA also contended that the draft EIS did not "evaluate a reasonable range of alternatives," particularly with regard to grazing, and did not adequately address cumulative impacts, again paying particular regard to grazing pressures. It also raised concerns regarding the draft Plan's treatment of off-road vehicles ("ORVs"), contending that the Plan left too much land open to that use, without considering more conservation-oriented management. Having reviewed these comments, along with dozens of others, the BLM made some modifications to its EIS and proposed Plan and issued both in final form in 2001. See Notice of Availability of Proposed Southeastern Oregon Resource Management Plan and Final Environmental Impact Statement; and Proposed Area of Critical Environmental Concern Designations, 66 Fed. Reg. 55,946 (Nov. 5, 2001). It is these documents that are at issue in this appeal.

We next describe the EIS's treatment of the wilderness, grazing, and ORV issues.

1. Wilderness Issues

After receiving ONDA's comments on the draft EIS and Plan suggesting the need to give more attention to lands with wilderness characteristics, the Bureau wrote in the final EIS that:

A global reinventory by BLM to address wilderness values within the planning area is outside the scope of this plan. In accordance with FLPMA, with substantial public input and review, BLM has completed its required evaluation and assessment of wilderness values on public lands with earlier planning efforts. The agency's wilderness recommendations in Oregon derived from those planning efforts have been submitted and are presently awaiting consideration by Congress.

FEIS, Vol. III at 105. BLM further explained that "[t]he wilderness process started in 1978, the Final EIS [for that process] was completed in 1989, with the Record of Decision, and recommendation of the Secretary of Interior [as to preservation] submitted in October 1991]." FEIS, Vol. I at 12. The BLM therefore considered such issues as "[e]liminated from [d]etailed [s]tudy," because further permanent wilderness preservation "hinge[d] on congressional actions." Id. The EIS therefore did not consider the effects of the Plan on areas with wilderness characteristics not already designated as WSAs, nor analyze management options for the wilderness values in such areas.

As we noted earlier, in its 1991 wilderness report, the BLM identified roughly three thousand acres of land adjacent to WSAs that could be added to them. In the 2001 final EIS, the Bureau considered alternatives for protecting the "wilderness characteristics" of this limited additional area. See FEIS, Vol. I at 627. The Plan observed, in connection with these lands, that "[u]nder FLPMA, wilderness preservation is part of BLM's multiple-use mandate, and wilderness is recognized as part of the spectrum of resource values considered in the land use planning process." BUREAU OF LAND MGMT., U. S. DEP'T OF THE INTERIOR, SOUTHEASTERN OREGON RESOURCE MANAGE- MENT PLAN AND RECORD OF DECISION ("Plan ROD") 104 (2003).

The BLM considered two possibilities for these lands - adding the land to the WSAs, or not adding the land. See FEIS, Vol. I at 373-75. In discussing the first possibility, the BLM proposed to manage such additions as WSAs, under the non-impairment standard of 43 U.S.C. § 1782(c). Id. at 374. Yet, the BLM did not intend to recommend such lands for congressional preservation, which would implicate § 1782; instead, it intended to use its normal management authority, derived from its broad land use planning authority, to replicate the non-impairment standard. See id.; see also 43 U.S.C. §§ 1712, 1732.

Aside from these few thousand acres of land, however, other areas with wilderness values not already identified in the 1991 review were not singled out for analysis and planning purposes. Therefore, for the remainder of this opinion, except as otherwise noted, when we refer to "wilderness characteristics," "wilderness values," or land with those values, we refer to areas outside both the WSAs in the 1991 report and the adjacent lands that the BLM proposed adding to them.

The BLM did consider granting some degree of additional protection from development and other disruptive uses to several hundred thousand acres of land in "areas of critical environmental concern."*fn9 FEIS, Vol. I at 276-368; see also 43 U.S.C. § 1712(c)(3) (requiring the BLM to give priority to area of critical environmental concern in land use planning). These critical areas are broadly defined as "areas within the public lands where special management attention is required... to protect and prevent irreparable damage to important historic, cultural, or scenic values, fish and wildlife resources, or other natural systems or processes, or to protect life and safety from natural hazards." 43 C.F.R. § 1601.0-5(a). Designation as a critical area does not, of itself, "change or prevent change of the management or use of public lands." Id. The Plan, however, contemplated various limitations on ORV use, mineral leasing, and plant collection, among other protections, for such areas.

The critical areas protected by the Southeast Oregon Plan are limited, however. Also, the overlap between the critical area criteria and the statutory definition of wilderness values is only partial. Compare 43 C.F.R. § 1601.0-5(a) (defining areas of critical environmental concern) with 16 U.S.C. § 1131(c)(1)-(4) (describing wilderness characteristics). As a consequence, the BLM does not structure its critical area decisions to protect wilderness characteristics, nor does designation as a critical area necessarily imply the presence of wilderness characteristics. In fact, several of the areas of critical environmental concern contain roads or other signs of human use that would be incompatible with wilderness values. See, e.g., FEIS, Vol. I at 293, 299, 303. Some other critical areas, however, do not contain such features and lie, in whole or in part, in existing WSAs. See, e.g., id. at 286, 291, 304, 307, 309, 331, 347.

In sum, although the BLM considered incorporating a small amount of land into the WSAs, and protecting some other regions as critical areas, it explicitly disclaimed any general obligation to analyze the impacts of its Plan on wilderness values, or to consider management options for areas with those values, and took no action contrary to that statement.

2. Alternatives Analyses

In considering alternatives for resources for which it did acknowledge its authority to plan, the BLM studied several courses of action. It put forth seven alternatives - A, B, C, D, D2, E, and a single alternative describing the proposed resource management plan, designated as "Proposed RMP" or "PRMP" - which it used to analyze various constellations of management options. See FEIS, Vol. I at 152-85. Of note, alternative B would continue present management as a "no action" alternative; alternative D2, added after comments were received on the draft EIS, generally favors more conservation; and alternative E was included to analyze the possibility of ending all uses other than conservation, even though the BLM believed that alternative was not valid because it conflicted with the Bureau's multiple use mandate. See id. at xiii, 137-38, 152. The Proposed RMP alternative was ultimately selected for use in the final Plan. Plan ROD at v. We describe the alternatives in detail as they relate to grazing and ORV use.

a. Grazing Issues

The BLM sets basic grazing practices and goals in its land use plans. See 43 C.F.R. § 4100.0-8 (mandating consideration of grazing management in land use plans). Grazing occupies large swathes of the public lands in southeastern Oregon and has considerable economic and environmental impacts. The BLM therefore analyzed grazing options for its proposed Plan in the EIS. See FEIS, Vol I. at 246-55.

In doing so, the BLM considered alternatives that would adjust both the extent of land open to grazing and the intensity of grazing allowed on public land. The BLM predicted that the general management priorities specified by some of the alternatives analyzed in the EIS would cause grazing intensity to increase over time, while others would result in a decrease in grazing intensity.

Most of the alternatives considered would initially maintain grazing near current levels and would not change the amount of land allocated to grazing. See FEIS, Vol. I at xxii, 246-55. Only one alternative deemed valid by the Bureau, Alternative D2, contemplated substantial grazing restrictions, with regard to both area and intensity. (The BLM also considered barring all grazing on public lands in Alternative E but, as noted, it explained that such an alternative could not validly be selected.) The areas closed to grazing in Alternative D2, which considered by far the largest closure, cover portions of the shores of wild and scenic rivers in the planning area, along with some critical areas and several other protected land types. See id. at 250-53. Because the BLM did not consider management choices for lands with wilderness characteristics, it did not consider limiting grazing in those areas in particular.

We summarize the alternatives in the following table. As mentioned above, the PRMP alternative was selected for use in the Plan. It is worth noting that, of the alternatives deemed viable by the BLM, only Alternative D2 would close more than about 1% of the land in the planning area to grazing:

Alt. A

Alt.

PRMP

Alt. B

Alt. C

Alt. D

Alt. D2

Alt. E

Total

420,584

420,584

420,584

420,584

288,084

0

420,584

AUMs*fn ...


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